State of Gujarat and Others vs B.N. Leuva

B.N. Kirpal, C.J.—This is an appeal against the judgment of the single Judge, who has quashed orders of transfer of the petitioner.

Briefly stated, the facts are that the petitioner, vide order dated 19th of July, 1993 was transferred and appointed to the ex-cadre post of

Director, Central Medical Stores Organisation, Gandhinagar, vice Shri V. C. Trivedi (respondent No. 3), who was transferred and whose services

were put at the disposal of the Narmada and Water Resources Department.

On 1st September, 1993, another order was passed, whereby the respondent herein was transferred to the ex-cadre post of Director, District

Rural Development Agency, Amreli, a post which was lying vacant, and respondent No. 3 was transferred back to the post of Director, Central

Medical Stores Organisation, Gandhinagar.

Order dated 1st September, 1993 was challenged. It was, inter alia, contended that within a short span of time, respondent No. 1 has been

transferred and this has been done with a view to accommodate respondent No. 3 in the petition. The aforesaid writ petition was allowed. It was

held by the learned single Judge that within a short span of time, the writ petitioner should not have been transferred. Reference was made to the

Government guidelines relating to the posting and transfers of the officers.

In Union of India v. S. L. Abbas 1993 II CLR 168, it has been held that who should be transferred where is for an appropriate authority to

decide and unless the order of transfer is vitiated by mala fides, or is made in violation of any statutory provisions, the Court cannot interfere with it.

It was further held in that case that if there are any guidelines issued by the Government, the same may be kept in view, but the said guidelines do

not confer upon the Government employee legally enforceable right.

In our opinion, the learned single Judge was wrong in quashing the order in question. He could not have directed that the respondent No. 1

should not be disturbed from the present posting. Transfer of an officer is an incidence of service unless the case can be squarely brought within the

exception referred to in Abbas''s case. The mere fact that the respondent No. 1 had been posted for 1 1/2 months is not and could not have been

a reason for coming to the conclusion that he could not be transferred from there. Similarly, bringing respondent No. 3 back to the post, which he

originally held, will also not justify the quashing of the order of transfer. In order to establish mala fides, strong material must exist on record, from

which such a conclusion can be drawn. The learned single Judge has not gone into this aspect before coming to the conclusion that a case for mala

fides was made out. The learned single Judge has primarily based his decision in view of the guidelines which were shown to him, viz., that Mr.

Trivedi could not be brought back to a post, which he held for three years and that the respondent No. 1 herein could not have been transferred

from a post, which he has held only for 1 1/2 months. In view of this, the appeal is allowed. The consequent order which would have, normally,

followed is that the case would be remanded to the single Judge for decision on the Special Civil Application afresh, but because of subsequent

facts that will not be necessary. Mr. Trivedi has since been promoted and posted as Collector at Dangs and, therefore, according to Mr. Sompura,

he will not be posted to the post of Director, Central Medical Stores Organisation. The writ petitioner, therefore, wishes to make a representation

to the Government and a prayer is made for withdrawal of the writ petition, which is allowed and the writ petition itself is dismissed as withdrawn.

As and when the representation is made, the same shall be decided as expeditiously as possible. No order as to costs.

Appeal allowed.